At the outset, I should note a mistake in my earlier discussion that ended up leading to some off-track discussion in the comments. By its very terms, the law prohibited people in non-marital cohabiting relationships from adoption or fostering. Thus while the discussions on the difference between adoption and fostering might be interesting, they aren’t pertinent here, since someone in the identified class cannot do either one.

I want to examine the operation of the statute and the construction of the case challenging it. It’s a fine example of a general statute confronted with a specific situation.

The statute creates a category of people who are barred from adopting or serving as foster parents–those cohabiting in a sexual non-marital relationship. Once it is established that the proposed adoptive or foster parent falls within that category, no further examination of particular case is needed. The specifics of a particular application are irrelevant.

I think there are two ways the state might articulate benefits from this sort of a scheme. First, the state can say the categorical exclusion directly serves the well-being of children, which is the immediate goal of adoption and foster care. To say this, the state must assert that the people in the excluded category would necessarily be poor adoptive of foster parents. In this case, the state asserted (according to the opinion) that on average cohabiting environments facilitated poor performance outcomes for the children and exposed children to higher risks of abuse.

The state can also say the the blanket prohibition is economical. Because all people in the category are excluded, no resources are expended evaluating individual applicants. If you assume that all or even a substantial majority of the applicants in the category would be found individually wanting anyway (see the first argument), you’ve saved yourself a lot of time and trouble.

If you wanted to challenge this scheme, you could challenge the first assertion–about the general suitability of unmarried cohabitants as adoptive or foster parents. There’s plenty of literature to support such a challenge, but in the end the critical question will probably be how closely the court examines the question and how much deference the court gives to legislative (or in this case, electorate) judgment. If you look at the judge’s opinion on the first point, you’ll see that he substantially deferred to the legislature, requiring only that the judgment be rational (as opposed to requiring that it be likely correct, say.)

While the plaintiffs challenging the law made these and other arguments, I want to look at how they presented their case rather than what specific arguments they made. Instead of resting on the generalities, the plaintiffs’ legal team invites us to see the operation the law from from the point of view of a particular family.

Sheila Cole lives with her partner of nine years in Tulsa, Oklahoma. Her daughter gave birth to a baby girl in May, 2009. Within two months the baby was in protective custody of the state. Sheila asked to become foster mother to the child. She travelled four hours each way each week to spend time with the infant.

The state of Oklahoma (not generally said to be a particularly radical place) conducted a home study and found her suitable. All the witnesses from Arkansas social services agreed that placing her granddaughter with her would be best for the child. Indeed, it doesn’t seem there was any doubt in the matter. But there was that statute, which categorically disqualified her.

Notice how the state’s justifications fare in the face of these specific facts. Even if you accept the general proposition that children are better off not placed with unmarried cohabitants, that’s not true for this child. This child is better off placed with Sheila Cole, who also happens to be an unmarried cohabitant. And even if you accept that there could be general economies, would that justify denying this particular child the best chance she can have? It’s hard to deny a particular child what is in her best interests based on generalized interests in economy.

You can see this as a specific iteration of a broader question: Should there be categorical exclusions for adoptions–certain people who, by virtue of their membership in a particular category, can never be eligible? And if we say “yes” to that–that there are some categories of people who should be systematically excluded–what do we do when we are confronted with a specific child in a specific circumstance where the child’s best option is someone in the prohibited category?

6 responses to “More About Adoption in Arkansas”

This is this woman’s grandchild why on earth would she not be able to raise her own grandchild especially if the state found that her home was suitable. You actually don’t even say that she’s trying to adopt her grandchild. It sounds like because the grandmother was willing to take care of her grandchild he did not end up in foster care. You can hardly call your grandmas house a foster home – although some strange application of the rules seems to have gone on here.
As far as making the argument against the states rule that unmarried cohabitation makes a couple unsuitable to adopt or foster – I’ve got a great reason and it does not involve statistical evidence:
The law recognizes that a man and woman are perfectly capable of becoming parents without being married to eachother. The law does not say they are not parents because they are not married – they don’t even have to live together – they don’t even have to want to be parents in fact they can even make a plan for their child to be adopted and the law still aknowledges them as parents and would support their decision to raise their child seperately through a joint custody agreement.
The law says that adoption is equal in every way to parenthood by conception. The law does not require people to be married before they conceive a child therefore it cannot require people to be married before they adopt a child. The law need only ensure that they are not allowing the child to be adopted into an unsafe environment – as it would attempt to ensure that children raised by their progenators live in a safe environment. Beyond that income sexual preference etc are not mandated for conception and I see it as an equal rights issue. An issue that does not require anyone to prove their point with statistical data or expert testimony. The law needs to be applied equally to all people and where it is not being applied equally it needs to change.

It looks to me like the state took custody of the child when the child turned up hurt. If that’s so, then the state has to find an appropriate place to put the child. It cannot just plop the child down anywhere–it has to follow procedures.

The state didn’t terminate the mother’s rights, so it’s looking for a foster parent. The grandmother is an excellent candidate–there’s a good home study and all the involved caseworkers think it would be best for the child. What stands in the way is the statute. Since the grandmother lives in a non-marital (more specifically same-sex, so it could not be marital in Arkansas) relationship, she’s disqualified. And no one else is standing up to volunteer to be this child’s foster parent.

Barring the grandmother from caring for her child seems to me to be absurd. And that’s exactly what makes the grandmother’s case so strong. The equities–what is fair and what is good for the child–favor placement with the grandmother. The statute can be justified in a general way by some arguments about married parents. But those arguments cannot speak to the reality faced by this particular child.

Adoption is not equal to parenthood. Adoptive parents need to pass a whole lot of criteria, whereas biological parents don’t.

We discussed this on a previous post, and my understanding was that it’s a whole new game when dealing with a child who already exists vs. one that doesn’t.

Regarding the current law:
I think in some locales even biological parents could lose custody if they bring a sexual partner into the house to whom they are not married. I think such a case was raised on this forum. In such locales it is reasonable to apply the same standard to non biological parents.

Yes, it is worth noting that a single person could adopt in Arkansas. Even a single lesbian or a single gay man.

I suppose you could say that the law forces unmarried heterosexual couples to get married before they adopt, thus regularizing their relatioships. But since gay and lesbian couples cannot get married in Arkansas, it does nothing but bar them from adopting. I don’t think this is coincidental. The law at issue here took the place of a regulation that prohibited lesbians and gay men from adopting.

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About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.